How to make a will in Tennessee and what can happen if you don't.
Need Professional Help? Talk to an Estate Planning Attorney.
Steps to Create a Will in Tennessee
Here's a quick checklist for making a will in Tennessee:
- Decide what property to include in your will.
- Decide who will inherit your property.
- Choose an executor to handle your estate.
- Choose a guardian for your children.
- Choose someone to manage children's property.
- Make your will.
- Sign your will in front of witnesses.
- Store your will safely.
- Deposit your will with the probate court, if you prefer.
Why Should I Make a Tennessee will?
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
- leave your property to people or organizations
- name a personal guardian to care for your minor children
- name a trusted person to manage property you leave to minor children, and
- name an executor, the person who makes sure that the terms of your will are carried out.
What Happens If I Don't Have a Will?
In Tennessee, if you die without a will, your property will be distributed according to state "intestacy" laws. Tennessee's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Do I Need a Lawyer to Make a Will in Tennessee?
No. You can make your own will in Tennessee, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.
What Are the Requirements for Making a Will in Tennessee?
To make a will in Tennessee, you must be:
- an individual 18 years of age or older, and
- of sound mind. Tennessee Code Ann. § 32-1-102.
You must generally make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Tennessee does permit handwritten wills (Tennessee Code Ann. § 32-1-105), but they are usually not a good idea.
Tennessee does also recognize nuncupative (oral) wills in very limited circumstances. To make an oral will, you must be in imminent peril of death and you must die from that peril. Additionally, you must state you are communicating your will to two disinterested witnesses, one of the witnesses must put your statements in writing within 30 days, and your will must be submitted to probate within six months of your death. This type of will can only dispose of up to $1,000 in personal property or $10,000 if you are in active military, air, or naval service. This type of will doesn't revoke or change any existing written will. Tennessee Code Ann. § 32-1-106.
How Do I Sign My Tennessee Will?
To finalize your will in Tennessee:
- you must declare the instrument to be your will and sign or acknowledge it in front of two witnesses, and
- your witnesses must sign your will in front of you and each other. Tennessee Code Ann. § 32-1-104.
It's best to have a "disinterested" person who has nothing to inherit from you sign your will as a witness than an "interested" person since an interested person can lose the gift you left to him or her in your will if acting as your witness. Tennessee Code Ann. § 32-1-103.
Holographic wills do not need to be witnessed. However, the signature and all material provisions in them have to be in your own handwriting. There must be two people who can say that it is your handwriting. Tennessee Code Ann. § 32-1-105.
Do I Need to Have My Will Notarized?
No, in Tennessee, you do not need to notarize your will to make it legal.
However, Tennessee allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will. Tennessee Code Ann. § 32-1-110.
Should My Will Name an Executor?
Yes. In Tennessee, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.
Can I Revoke or Change My Will?
In Tennessee, you may revoke or change your will at any time. You can revoke your will by:
- burning, tearing, canceling, obliterating, or destroying all or part of your will
- making another will that says it revokes all or part of the old will or that has contradictory terms to the old will, or
- making another document that says it revokes the old will while following the same formalities you used to make your original will. Tennessee Code Ann. § 32-1-201.
If you marry someone after you make your will and have a child, your will is automatically revoked. Tennessee Code Ann. § 32-1-201. In this situation, you would have to make another will to avoid Tennessee's intestacy law.
If you and your spouse divorce (or if a court determines that your marriage is not legal), Tennessee law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule does not apply if you specifically state in your will that divorce should not affect the provisions in your will or you happen to remarry your spouse. Tennessee Code Ann. § 32-1-202. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.
If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
Can I Make a Digital or Electronic Will?
In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Tennessee currently doesn't allow e-wills, but that may change in the future.
Where Can I Find Tennessee's Laws About Making Wills?
You can find Tennessee's laws about making wills here: Tennessee Code Annotated Title 32 Wills Chapter 1 Execution of Wills.
Ready to create your will?